Information Technology Foundation of the Phil vs Comelec : 159139 : J. Tinga : En Banc : Dissenting Opinion

DISSENTING OPINION

TINGA, J.:

Prologue

Once again, the Court availing of its extraordinary powers or so-called “certiorari” jurisdiction has struck down a government contract, sealed no less by the respondent Commission on Elections (COMELEC) in the exercise of its administrative powers granted by the Constitution in relation to the conduct of elections. Apparently, the Court has opted to trudge the trail it blazed recently in the Amari[1] and PIATCO[2] cases. Amari voided the Manila Bay reclamation project on constitutional grounds[3] and PIATCO struck down the NAIA Terminal III contract for violations of the Constitution[4] and some other laws[5] to boot.

But in this case, no constitutional provision or letter of a statute was alleged to have been violated. The Court nullified the contract for an automated election system (“AES”) simply on the ground that in making the award the COMELEC has allegedly violated its bidding rules and an unfounded apprehension that the counting machines would not work on election day. On the other hand, not one of the losing bidders has joined the petition, as neither they nor the petitioners questioned the fairness of the price tag for the machines.

The year 2004 could have well been marked in the annals of the Philippines by the maiden use of the automated election. But the country was deprived of the golden chance to join the growing roster of states with modern election systems which include developing countries such as Kenya, Mali, Zambia, Romania, Albania, Mexico and Argentina because of the Decision of the Court.

In the process, the Court has disregarded the fundamental postulates by which this case should have been decided. They are the following:

First. The instant original petition is one for prohibition and mandamus under Rule 65 of the 1997 Rules of Civil Procedure. Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, commanding the respondent to desist from further proceedings when said proceedings are without or in excess of the respondent’s jurisdiction or are attended with grave abuse of discretion amounting to lack or excess of jurisdiction and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law.[6] Mandamus, on the other hand, is an extraordinary writ commanding a tribunal, corporation, board, officer or person, immediately or at some other specified time, to do the act required to be done, when the respondent unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or when the respondent excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law.[7]

Second. In deciding the instant case, the Court shall consider only the undisputed or admitted facts and resolve only the specific questions raised by the parties.[8] The Court is not a repository of remedies or a “super-legal-aid bureau.”[9] We cannot grant relief for every perceived violation of the law or worse, on the basis of prophetic wisdom. Paraphrasing an old decision, Mr. Justice Felix Frankfurter wrote: “Judicial power, however large, has an orbit more or less strictly defined by well-recognized presuppositions regarding the kind of business that properly belongs to courts. Their business is adjudication, not speculation. They are concerned with actual, living controversies, and not abstract disputation.”[10]

Third. The Court does not, as indeed it cannot, guarantee the success of the automation or the integrity of the coming elections. It is not the Court’s function to actively ensure that the automation is successfully implemented or that the elections are made free of fraud, violence, terrorism and other threats to the sanctity of the ballot. This duty lies primarily with the COMELEC.[11]

Fourth. The Court has constantly underscored the importance of giving the COMELEC considerable latitude in adopting means and methods that will insure the accomplishment of the objective for which it was created — to promote free, orderly, honest, peaceful and credible elections. Thus, in the past we have prudently declined to interfere with the COMELEC’s exercise of its administrative functions absent any showing of grave abuse of discretion.[12] As luminously stated in Sumulong v. COMELEC,[13] “[I]n the matter of the administration of the laws relative to the conduct of elections, as well as in the appointment of election inspectors, we must not by any excessive zeal take away from the Commission on Elections the initiative which by constitutional and legal mandates properly belongs to it. Due regard to the independent character of the Commission, as ordained in the Constitution, requires that the power of this court to review the acts of that body should, as a general proposition, be used sparingly, but firmly in appropriate cases.”[14]

For the reasons I shall discuss hereunder, I find myself unable to subscribe to the ponencia and join the ranks of my colleagues in the majority.

Let me first mention that at the opening part of the Decision, the Court opined that there is grave abuse of discretion when the assailed act is contrary to “jurisprudence.” Yet, the 99-page Decision failed to mention a single Court decision which the respondents have defied.

Petitioners failed to exhaust

administrative remedies

I agree with the respondents that the petitioners failed to exhaust, or better still avail of, the administrative remedies outlined in R.A. 9184, as follows:

“SEC. 55. Protests on Decisions of the BAC. —Decisions of the BAC in all stages of procurement may be protested to the head of the procuring entity and shall be in writing. Decisions of the BAC may be protested by filing a verified position paper and paying a non-refundable protest fee. The amount of the protest fee and the periods during which the protests may be filed and resolved shall be specified in the IRR.

SEC. 56. Resolution of Protests. — The protests shall be resolved strictly on the basis of the records of the BAC. Up to a certain amount to be specified in the IRR, the decisions of the Head of the Procuring Entity shall be final.

SEC. 57. Non-interruption of the Bidding Process. — In no case shall any protest taken from any decision treated in this Article stay or delay the bidding process. Protests must first be resolved before any award is made.

SEC. 58. Resort to Regular Courts; Certiorari. — Court action may be resorted to only after the protests contemplated in this Article shall be have been completed. Cases that are filed in violation of the process specified in this Article shall be dismissed for lack of jurisdiction. The regional trial court shall have jurisdiction over final decisions of the head of the procuring entity. Court actions shall be governed by Rule 65 of the 1997 Rules of Civil Procedure.

This provision is without prejudice to any law conferring on the Supreme Court the sole jurisdiction to issue temporary restraining orders and injunctions relating to Infrastructure Projects of Government.” [Emphasis supplied]

As correctly pointed out by the respondents, at no time during the entire bidding process did the petitioners question the determination of the COMELEC Bids and Awards Committee (BAC) finding Mega Pacific Consortium (MPC) eligible to bid. Under R.A. 9184, decisions of the BAC should be appealed to the COMELEC en banc. Consequently, the determination of the BAC that MPC was eligible to bid, adopted subsequently by the COMELEC, became final.

The doctrine of exhaustion of administrative remedies requires that when an administrative remedy is provided by law, relief must be sought by exhausting this remedy before the courts will act. No recourse can be had until all such remedies have been exhausted and special civil actions against administrative officers should not be entertained if superior administrative officers could grant relief.[15] In Hon. Carale v. Hon. Abarintos,[16] the Court enunciated the reasons for the doctrine, thus:

Observance of the mandate regarding exhaustion of administrative remedies is a sound practice and policy. It ensures an orderly procedure which favors a preliminary sifting process, particularly with respect to matters peculiarly within the competence of the administrative agency, avoidance of interference with functions of the administrative agency by withholding judicial action until the administrative process had run its course, and prevention of attempts to swamp the courts by a resort to them in the first instance. The underlying principle of the rule rests on the presumption that the administrative agency, if afforded a complete chance to pass upon the matter, will decide the same correctly. There are both legal and practical reasons for this principle. The administrative process is intended to provide less expensive and more speedy solutions to disputes. Where the enabling statute indicates a procedure for administrative review, and provides a system of administrative appeal, or reconsideration, the courts, for reasons of law, comity and convenience, will not entertain the case unless the available administrative remedies have been resorted to and the appropriate authorities have been given an opportunity to act and correct the errors committed in the administrative forum.

Accordingly, the party with an administrative remedy must not merely initiate the prescribed administrative procedure to obtain relief, but also pursue it to its appropriate conclusion before seeking judicial intervention in order to give the administrative agency an opportunity to decide the matter by itself correctly and prevent unnecessary and premature resort to the court.[17] [Emphasis supplied]

Moreover, under the Rules of Court, judicial review of administrative decisions may be availed of only through special civil actions. Such proceedings cannot lie if there is an appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law.[18]

In Paat vs. Court of Appeals,[19] the Court enumerated the instances when the rule on exhaustion of administrative remedies may be disregarded:

…(1) when there is a violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the President bear the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention.[20]

The petitioners’ allegations do not bring their case within the jurisprudentially recognized exceptions to the rule on exhaustion of administrative remedies. It is noteworthy that the protest mechanism outlined in R.A. 9184, in allowing protests of decisions of the BAC “in all stages of procurement,”[21] reinforces and even institutionalizes the exhaustion doctrine insofar as public bidding is concerned. Hence, had petitioners intended to pursue the available administrative remedies, they could have easily asked for a reconsideration the moment the BAC determined MPC eligible to bid, failing which, they could have filed a protest with the COMELEC en banc itself.

Petitioners did neither. Instead they sat in waiting until the final hour and now insist that the Court disregard the rule on exhaustion of administrative remedies on the puerile reason that there was no opportunity for the protest mechanism instituted in R.A. 9184 to apply because the BAC rendered its report and recommendation in open session on April 15, 2003, the same day and on the same occasion that the COMELEC issued the assailed Resolution No. 6074 awarding the Contract to MPC.

The majority opinion posits that it would have been futile for petitioners to protest/appeal the BAC report to the COMELEC chair since by the time they could have made the move the COMELEC had already approved the report. Not necessarily so. The petitioners could have, or better still, should have appealed directly to the COMELEC en banc. After all, matters of this nature have to be decided by the COMELEC as a collegial body. To state that the poll body would not act on the appeal is to uncharitably state that it would disregard its duty to respond as required by the Code of Ethical Conduct.[22] Thus, the Court’s statement that the COMELEC en banc made it impossible for petitioners to make use of the administrative remedy is simply baseless.

Be it noted that the petitioners wasted nearly five (5) months from the time the BAC Report was released on April 21, 2003 before they filed the instant Petition on August 6, 2003. The significant time gap precludes the availability of the exceptions to the exhaustion doctrine. Specifically, the petitioners cannot successfully claim that to require exhaustion of administrative remedies would be unreasonable, or that the rule does not provide a plain, speedy and adequate remedy, or that judicial intervention has become urgent because of the circumstances.

Considering the circumstances, it is my view that the premature invocation of this Court’s judicial power is fatal to the petitioners’ cause of action.

MPC, the consortium,

participated in the bidding

According to the Court, the first major concern which bears on the issue of grave abuse of discretion relates to the identity and existence of the MPC as a bidder. Petitioners claim that the real bidder was Mega Pacific eSolutions, Inc. (MPEI). On the other hand, the respondents insist that the bidder was MPC of which MPEI was the lead member.

On record are the following documents:

1. Letter of MPEI’s President, Willy Yu, dated March 7, 2003, which states:

March 7, 2003

BIDS AND AWARDS COMMITTEE

Commission On Election

Intramuros, Manila

Sir:

In response to your Invitation to Bid for the COMELEC Modernization Project corresponding to the various phases which are as follows:

Phase I : Voters Registration – Voters Validation System

Phase II : Vote Counting and Canvassing – Automated

Counting/Canvassing

Phase III : Transmission & Dissemination of Results –

Electronic Transmission/Consolidation &

Dissemination of Result

The following companies listed below have agreed to form a consortium to bid for the said project;

Mega Pacific eSolutions, Inc.

Election.Com Ltd

EPLDT

SK C & C

We Solv Open Computing, Inc. (Subsidiary of Fujitsu Phils. Inc.)

Oracle System (Philippines) Inc.

Very truly yours,

(Sgd.) WILLY U. YU

President

MEGA PACIFIC eSOLUTIONS, INC.

(Lead Company/Proponent)

For: MEGA PACIFIC CONSORTIUM

2. Agreements among the members of the consortium, namely:

(a) Memorandum of Agreement between MPEI and We Solv Open Computing, Inc. (WeSolv) dated March 5, 2003 and notarized on March 7, 2003;

(b) Memorandum of Agreement between MPEI and SK C&C Co. Ltd. (SK C&C) dated March 9, 2003 and notarized on March 9, 2003;

(c) Teaming Agreement between MPEI and Election.Com Ltd. (Election.Com) dated March 3, 2003 and notarized on March 9, 2003; and

(d) Agreement between MPEI and ePLDT dated March 3, 2003 and notarized on March 9, 2003.

These documents all bear execution and notarization dates prior to the submission by MPC of its bid documents on March 10, 2003.

Contrary to the Court’s assessment, the fair assumption to make is that the letter of MPEI’s President on behalf of MPC and the agreements between MPEI and the members of the consortium had already been submitted to the COMELEC when the BAC evaluated the bids and the poll body acted upon the BAC’s recommendation and accordingly resolved to award the Contract to MPC.

On the basis of the bid documents submitted by MPEI on behalf MPC, including the consortium agreements, the COMELEC awarded Phase II of the AES (Project) to MPC per Resolution No. 6074 dated April 15, 2003. The full text of the Resolution reads, thus:

RESOLUTION NO. 6074

This pertains to the Award of the Contract for Phase II (Automated Counting Machine) of Modernization Program of the Commission.

Two (2), out of the three, bidders passed the eligibility requirements, namely:

1. MEGA Pacific Consortium

2. Total Information Management Corporation (TIM)

In consonance with the mandate of Republic Act No. 8436, the Commission sought the assistance of Department of Science and Technology in the technical evaluation on identified key requirements, outlined in the Request for Proposal (RFP) and Section 7 of the aforecited law, mainly covering various parameters pertaining to vote counting accuracy, consolidation/canvassing accuracy, ballot counting speed, security features (both hardware and software), and system reliability of the Automated Counting Machines (ACMs).

Upon receipt of the test results on the ACMs provided by the two prospective suppliers, the BAC proceeded with the evaluation of their financial bids, and thereafter made a recommendation to the Commission while the same was in session on 15 April 2003.

After a thorough deliberation on the matter, the Commission had solid basis to award the project.

Earlier the Chairman was given authority by the Commission in Resolution No. 5989 promulgated 27 March 2003 to award to the winning bidders the three (3) phases of the modernization program. However, considering the present discussion, with the members of the BAC in attendance and recommending award of the project to Mega Pacific, the Chairman have the matter passed upon by the Commission.

Meantime, Commissioner Mehol K. Sadain submitted a memorandum stated in this wise:

“xxx xxx xxx

With regard to the Automated Counting Machines award of the contract, undersigned would have preferred to register his vote, however, the BAC report which is the basis for the award, has not yet been submitted to the Commissioners as of this writing.

At this juncture, undersigned would just like to inform the bank that, in case of a vote, he will be voting on the basis of the results of the first test participated by both bidders as called for under the terms of the bid.”

In view of the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to award Phase II of the Modernization Project of the Commission to Mega Pacific Consortium, having been declared as the bidder that submitted the lowest calculated responsive bid for the Automated Counting Machines. [Emphasis supplied]

Yet, the Court disputes the authority of MPEI or its President to represent the consortium.

In the Memorandum of Agreement (MOA) between MPEI and We Solv dated March 5, 2003, which was reproduced in the Decision, the following stipulations are found:

2. Mega Pacific shall be responsible for any contract negotiations and signing with the COMELEC and, subject to the latter’s approval, agrees to give WeSolv an opportunity to be present at meetings with the COMELEC concerning WeSolv’s portion of the Project.

3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular products and/or services supplied by the former for the Project. [Emphasis supplied]

The MOA between MPEI and SK C&C dated March 9, 2003, also reproduced in the Decision, contains similar provisions:

2. Mega Pacific shall have full powers and authority to represent the Consortium with the Comelec, and to enter and sign, for and in behalf of its members any and all agreement/s which maybe required in the implementation of the Project.

3. Each of the individual members of the Consortium shall be jointly and severally liable with the Lead Firm for the particular products and/or services supplied by such individual member for the project, in accordance with their respective undertaking or sphere of responsibility. [Emphasis supplied]

It appears that the Court assumed that the documents which establish the existence of the consortium were not with the COMELEC and it had no basis for determining that the consortium had existence[23] during the bidding process simply because the documents were not included in the “Eligibility Requirements” folder it submitted to the Court on October 9, 2003.[24] With due respect, let me state nothing is farther from the truth.

The Court required the submission of the documents bearing on the existence of the consortium only after the oral arguments on October 7, 2003. The directive is contained in the Court’s Resolution of even date quoted below:

In open court, Atty. Lazaro, counsel for private respondent Mega Pacific eSolutions, Inc., was DIRECTED by the Court to submit the following documents, a day after the hearing:

(a) contract executed between consortium represented by Mega Pacific eSolutions, Inc. and COMELEC;

(b) agreement among the consortium members;

(d) agreement as to the joint and several liability of the members of the consortium;

(e) status report of the Department of Science and Technology (DOST) as to whether the machines are already free of the eight (8) defects or failing marks it mentioned in a previous report or if the software has been reprogrammed successfully to eliminate the defects or failing marks.

Clearly, the directive was addressed to Atty. Alfredo Lazaro, Jr. So, it was he who had to submit the documents and he did so on October 10, 2003. The COMELEC was not required to submit any document. But since the DOST status report which is among the documents mentioned in the Resolution was not in the custody of MPEI, the COMELEC elected to submit it along with the “Eligibility Requirements” folder.

Obviously to prop up the hypothesis that the COMELEC was unaware of the consortium agreements during the bidding process, the majority picked on Commissioner Florentino Tuason, Jr. and portions of his answers to the questions asked of him during the oral arguments. Although he was evidently not the Commissioner assigned to speak on behalf of the COMELEC but Commissioner Resureccion Borra, Commissioner Tuason deferred to the Court and responded to the questions as best as he could. To put the answers in context, I quote them in full along with the questions.

JUSTICE QUISUMBING:

May I know if somebody from the Commission on Elections who knows the elements of the so-called verbal agreement on solidary liability of all the parties of this Mega Pacific, whatever it is?

Do you know anybody from the COMELEC who knows the elements of this oral agreement if any?

CHIEF JUSTICE:

Yes, would Commissioner Borra be willing to help the Assistant Sol. Gen.?

ASG RAMOS:

Perhaps Commissioner Tuason could speak to this Court with regard to that matter.

CHIEF JUSTICE:

Commissioner Tuason.

Yes, Commissioner Tuazon would you be able to enlighten the Court on the questions profounded (sic) by Justice Vitug and the request of Justice Quisumbing?

COMMISSIONER TUASON:

Good morning, Your Honors, I am sorry for my attire (interrupted)

CHIEF JUSTICE:

It is okay, we did not expect you really to argue but there seems to be an orderly information for the enlightenment of the Court.

COMMISSIONER TUASON:

As far as I know, your Honor, I am not in-charge of the, I am not In-charge of the phase 2, which is the Modernization Program, I am here because I am in-charge of the Legal Department and I oversee the legal activities of COMELEC.

CHIEF JUSTICE:

Who is in-charge then?

COMMISSIONER TUASON:

Insofar as a written agreement among the members of the consortium there is Your Honor, I was privy to the fact that when we were having conferences with the legal counsel of the private respondent there is indeed an agreement among the members of the consortium. That is my personal knowledge, Your Honor.

CHIEF JUSTICE:

Writing or (interrupted)

COMMISSIONER TUASON:

In writing, Your Honor, because the so-called agreement amongst the members of the consortium is of course an internal affair or an internal matter between the members of the consortium. But I do, I am aware of the fact that there is indeed a written agreement, Your Honor. And I am sure that when the time that the counsel for the private respondent will argue before this Honorable Court he will be presenting the written agreement amongst the members of the consortium.

JUSTICE VITUG:

Are you telling us that the COMELEC did not look into this matter?

COMMISSIONER TUASON:

I do think that they did, Your Honor, because I am not a member of the BAC, I am not the Commissioner-in-charge of the Phase II but I am aware that there is such agreement, Your Honor, which will be presented today and I think that this was taken into consideration (interrupted)[25]

. . . .

COMMISSIONER TUASON:

We did Your Honor because we asked the BAC on whether all these documents including the joint venture agreement or consortium agreement or agreement among the parties were taken into consideration.

JUSTICE PANGANIBAN:

You took the word of the BAC?

COMMISSIONER TUASON:

Of course, your Honor, because they are the ones mandated at that particular time, Your Honor, I did not personally.

JUSTICE PANGANIBAN:

All right, did you also look at the joint and several undertaking of the consortium members?

COMMISSIONER TUASON:

The condition under the request for proposal Your Honor is that manufacturers, suppliers and/or distributors forming themselves into a joint venture, a group of two or more manufacturers, suppliers, and or distributors that intend to be jointly and severally responsible or liable for a particular contract provided that Filipino ownership is 60%.

In other words, it is not a mandatory requirement that they be jointly and severally liable, Your Honor.

JUSTICE PANGANIBAN:

Now, That is interesting because you are contracting with a consortium that does not by itself have an independent legal personality.

COMMISSIONER TUASON:

Yes, that is right, Your Honor.[26]

The responses of Commissioner Tuason attest to the existence of the agreement and in essence do not contradict the provisions thereof. So do the answers of Atty. Lazaro, counsel for MPEI, who was queried quite extensively on the matter.[27]

The consortium agreements were not submitted to the Court obviously because the Petition did not raise any question about the joint and several undertaking of the members of the consortium. It was only during the oral arguments that the Court saw the need to secure copies of the documents. Thus, the Court issued the Resolution of October 7, 2003.

All told, MPEI as lead member of MPC submitted as part of the bid documents not only the letter dated March 7, 2003 but the following agreements, to wit:

(a) Memorandum of Agreement between MPEI and WeSolv dated March 5, 2003 and notarized on March 7, 2003;

(b) Memorandum of Agreement between MPEI and SK C&C dated March 9, 2003 and notarized on March 9, 2003;

(d) Agreement between MPEI and ePLDT dated March 3, 2003 and notarized on March 9, 2003.

before the deadline for submission of bids. Any contrary conclusion is baseless in fact and founded on pure conjecture.

The consortium

agreements are sufficient

The majority opinion, nonetheless, insinuates that it is not sufficient that a joint venture be formed, but that the members of the joint venture all bind themselves jointly and severally liable for the performance of the Contract. It asserts that there was no joint venture agreement, much less a joint and several undertaking, among the members of the alleged consortium. Thus, the BAC should not have found MPC eligible to bid.

I cannot subscribe to this position. The RFP specifically defines a joint venture as a group of two (2) or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for the contract.[28] Nowhere in the RFP is it required that the members of the joint venture execute a single written agreement to prove the existence of a joint venture. Indeed, the intention to be jointly and severally liable may be evidenced not only by a single joint venture agreement but by supplementary documents executed by the parties signifying such intention.

As the respondents pointed out, separate agreements were entered into by and between MPEI on the one hand and We Solv, SK C&C, Election.Com, and ePLDT on the other. The Memorandum of Agreement[29] between MPEI and We Solv and MPEI and SK C&C set forth the joint and several undertakings among the parties. On the other hand, the Teaming Agreements[30] between MPEI and Election.Com and MPEI and ePLDT clarified their respective roles with regard to the Project, with MPEI being the “independent contractor” and Election.Com and ePLDT the “subcontractors”.

The ponencia mistakenly attributes to the respondents the argument that the phrase “particular contract” in the RFP should be taken to mean that all the members of the joint venture need not be solidarily liable for the entire project, it being sufficient that the lead company and the member in charge of a “particular contract” or aspect of the joint venture agree to be solidarily liable. Nowhere in any of the respondents’ pleadings was this argument ever raised. If it was, inestimable gain goes to the respondents because this contention is ultimately logical and coherent.

The RFP itself lays down the organizational structure of the joint venture and the liability dynamics of the members thereof. It reads:

“d. Manufacturers, suppliers and/or distributors forming themselves into a joint venture, i.e., a group of two (2) or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or reliable for a particular contract, provided that Filipino ownership thereof shall be at least sixty percent (60%).”[31] [Emphasis supplied]

So, the RFP adverts to “particular contract.” It does not speak of “entire Project” or “joint venture,” from which the phrase “particular contract” should be distinguished. The clear signification is that all the members of the joint venture need not be solidarily liable for the entire Project or joint venture; it is sufficient that the lead company and the member in charge of a particular contract or aspect of the joint venture agree to be solidarily liable.

In any case, the Contract[32] incorporates all documents executed by the consortium members even if the same are not referred to therein. It provides:

“1.4 Contract Documents

The following documents referred to collectively as the Contract Documents, are hereby incorporated and made integral parts of the Contract:

(1) this Contract together with its Appendices;

(2) the Request for Proposal (also known as ‘Terms of Reference’) issued by the Comelec including the Tender Inquiries and Bid Bulletins;

(3) Tender Proposal submitted by Mega.

All Contract Documents shall form part of the Contract even if they or any one of them is (sic) not referred to or mentioned in the Contract as forming a part thereof. Each of the Contract Documents shall be mutually complementary and explanatory of each other such that what is noted in one although not shown in the other shall be considered contained in all, and what is required by any one shall be as binding as if required by all, unless one item is a correction of the other.

The intent of the Contract Documents is the proper, satisfactory and timely execution and completion of the Project, in accordance with the Contract Documents. Consequently, all items necessary for the proper and timely execution and completion of the Project shall be deemed included in the Contract.”[33] [Emphasis supplied]

Clearly, whatever perceived deficiencies there are in the supplementary contracts entered into by MPEI and the other members of the consortium as regards their joint and several undertaking were cured, or better still prevented from arising, by the above-quoted provisions from which it can be immediately established that each of the members of MPC is solidarily liable with the lead company, MPEI, albeit only for the particular contract or aspect of the joint venture of which it is in charge.

Moreover, the Contract provides several options which the COMELEC may take in case of MPC’s breach or non-performance of the material terms thereof. It provides:

“12.5. In the event of termination of this Contract pursuant to Article 12.2 hereof, COMELEC may exercise any or all of the following remedies:

12.5.1 Procure the facilities from another supplier, charging the amount over an (sic) above the contract price stipulated in this Contract, if any, to the account of MEGA;

12.5.2 Impose penalty for late delivery at the rate of 1/10 of 1% (0.001) for everyday of delay of the total value of the undelivered item(s);

12.5.3 Terminate this Contract;

12.5.4 Execute on MEGA’s Performance Security.”[34]

Significantly, MPEI posted a performance bond which amounts to 20% of the bid offer[35] against which the COMELEC may execute in case of breach.

COMELEC is protected

under the contract and the

Civil Code

But the Court dismisses the respondents’ use of the Contract as basis for the enforcement of the claims of COMELEC against the consortium on the premise that the Contract is between the COMELEC and MPEI, not MPC.[36] That is so because MPEI, as lead member of the consortium, is empowered by WeSolv and SK C&C, which along with MPEI itself, represent 90% of the total consortium interest, to represent them. This is clear from the stipulations in their MOAs.[37] Thus, as the Contract was executed by MPEI as the authorized representative of the key members of the MPC, it is the same as if MPC itself was the named party thereto.

From the foregoing, it is clear that the absence of a single formal joint venture agreement among all the members of the joint venture does not preclude the COMELEC from enforcing their liability in case of breach. In any event, the COMELEC may still enforce the liability of the consortium members under the general provisions of the Civil Code on partnership as correctly pointed out by the OSG in its Memorandum,[38] thus:

“Respondent COMELEC is not and will not be precluded from asserting the solidary liability of all consortium members who represented themselves to be such. In the absence of a joint venture agreement, and in cadence with [the] rule on partnership that a partner is considered as the agent of his co-partners and of the partnership in respect of all partnership transactions (Article 1803, Civil Code), private respondent’s members acted as agents of each other and are as such solidarily bound by their own and the other members’ undertaking. Further, the rule is that when a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to anyone, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such persons to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if [he] has made such representation or consented to its being made in a public manner he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made. When a partnership liability results, he is liable as though he was an actual member of the partnership. (Article 1825, Civil Code)”

It should be recalled that MPEI, SK C&C, We Solv, Election.Com and ePLDT represented themselves and/or allowed themselves to be represented as partners and members of MPC for purposes of bidding for the Project. They are, therefore, liable to the COMELEC to the extent that the latter relied upon such representation.[39] Their liability as partners is solidary with respect to everything chargeable to the partnership under certain conditions. The Civil Code provides:

“Art. 1822. Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his co-partners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefore to the same extent as the partner so acting or omitting to act.

Art. 1823. The partnership is bound to make good the loss:

(1) where one partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it; and

(2) Where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership.

Art. 1824. All partners are liable solidarily with the partnership for everything chargeable to the partnership under Articles 1822 and 1823.” [Emphasis supplied]

Thus, the solidary liability of the members of the consortium is inescapable, whether by the language of their own contracts inter se or the provisions of the Civil Code.

The consortium is eligible

The ponencia further echoes the petitioners’ objection to the BAC’s conclusion, finding MPC eligible to bid notwithstanding the absence of some financial documents of its member corporations, particularly MPEI which was incorporated only on February 27, 2003.

Under the RFP, the bidder shall furnish, as part of its bid, an eligibility envelope, consisting of legal, technical and financial documents, which should establish the bidder’s eligibility to bid and its qualifications to perform the Contract if its bid is accepted. The documentary evidence of the bidder’s eligibility to bid shall establish to the BAC’s satisfaction that the bidder, at the time of submission of its bid, is eligible to bid.[40] The eligibility envelope shall include the bidder’s legal, technical and financial documents, viz:

“(a) Legal Documents which shall include:

(1) Articles of Incorporation issued by the Securities and Exchange Commission, Business Registration, current licenses and permits, DTI Certificate of Registration, Mayor’s Permit, or by appropriate government agencies and VAT certification, if applicable;

(2) Approval of the Board of Directors for the Bidder to participate and enter into a contract with the COMELEC;

(3) Waiver of execution by its President under the authority of its Board that it is submitting to the jurisdiction of the Philippine government and thereby waives its right to question the jurisdiction of Philippine courts;

(4) Waiver executed by the President under the authority of its Board, to seek and obtain writ of injunctions (sic) or prohibition or restraining order against Purchaser to prevent and restrain the bidding procedures related thereto, the holding of bidding and any procedure related thereto, the negotiating and award of a contract to a successful bidder, and the carrying out of the awarded contract;

(5) Certificate issued by bidder’s duly authorized representative that, it has no record of suspension and that it is not presently suspended nor blacklisted by any Philippine government agency or by any international institution, whether in its individual capacity or as a member of a Joint Venture/Consortium;

(6) Certificate that the Bidder is licensed by the Bidder’s country to export the goods to be supplied under the contract.

(b) Technical Documents which shall contain documentary evidence to establish to the BAC’s satisfaction the Bidder’s technical and production capabilities necessary to perform the Contract. It shall include:

(1) Single sale/lease transaction with a contract value of at least ONE HUNDRED MILLION PESOS (Php 100,000,000.00) for same and similar type of equipment for the last three (3) years. Bidder shall be required to submit contracts and/or certificate/s of acceptance by the concerned Purchaser indicating therein the contract value;

(2) ISO 9000 Certificate or its equivalent;

(3) Literature and brochures describing the equipment, the manufacturer’s factory, manufacturing facilities, products and service centers;

(4) Certification from the Environmental Protection Agency (EPA) or similar government agency of the country of origin that the product meets the environment protection requirements therein;

(5) Certificate that if awarded the project, Bidder will submit a warranty for a minimum of two (2) years from date of delivery for units found to be imperfect or damaged due to factory defect.

(c) Financial Documents shall contain documentary evidence to establish to the BAC’s satisfaction the Bidder’s financial capability. Such evidence shall include:

(1) audited financial statements of the Bidder’s firm for the last three (3) calendar years, stamped “RECEIVED” by the appropriate government agency, to show its capacity to finance the manufacture and supply of Goods called for and a statement or record of volume of sales;

(2) Balance Sheet;

(3) Income Statement; and

(4) Statement of Cash Flow.

The bidders shall be evaluated according to their liquidity, solvency and stability. The company’s current assets should be more than its current liabilities. Its long term assets should be more than its long term liabilities. The BAC may disqualify companies that are having financial difficulty and thus, making its long term prospects dim. This will eventually affect their ability to deliver and meet the requirements for the election automated machines.”

On the other hand, the Bid Envelope shall contain the technical specifications and the bid price.[41]

According to the documents it submitted to substantiate eligibility, MPEI was incorporated only on February 27, 2003. Thus, it was not able to submit the required financial documents, i.e., Audited Financial Statements for the last three (3) years, Balance Sheet, Income Statement and Statement of Cash Flow.

However, the failure of MPEI to submit its financial documents due to its newly-acquired corporate personality should not by itself disqualify MPC. It should be pointed out that the purpose of the RFP in requiring the submission of the financial documents of the bidder is to determine the financial soundness of the latter and its capacity to perform the Contract if its bid is accepted. This purpose may well be attained by examining the financial documents submitted by the other members of the joint venture. In this regard, the respondents emphasized that SK C&C, ePLDT and We Solv submitted the required financial documents. Moreover, MPEI has a paid in capital of P300,000,000.00, an amount which is substantially over and above the 10% equity based on the total project cost required by the RFP. [42] Thus, I cannot subscribe to the majority’s myopic interpretation of the RFP that each of the members of MPC must comply with all the requirements thereunder.

In Kilosbayan v. Guingona,[43] we defined a joint venture as “an association of persons or companies jointly undertaking some commercial enterprise; generally all contribute assets and share risks. It requires a community of interest in the performance of the subject matter, a right to direct and govern the policy in connection therewith, and duty, which may be altered by agreement to share both in profit and losses.”[44]

The collective nature of the undertaking of the members of MPC, their contribution of assets and sharing of risks, and the community of their interest in the performance of the Contract all lead to the reasonable conclusion that their collective qualifications should be the basis for evaluating their eligibility. Practical wisdom dictates this to be so because the sheer enormity of the Project renders it improbable to expect any single entity to be able to comply with all the eligibility requirements and undertake the Project by itself. As emphasized by the OSG, the RFP precisely allowed bids from manufacturers, suppliers and/or distributors forming themselves into a joint venture in recognition of the virtual impossibility that a single entity would be able to respond to the Invitation to Bid.

Further, as pointed out by the COMELEC, the Implementing Rules and Regulations (“IRR”) of R.A. No. 6957,[45] as amended by R.A. No. 7718,[46] is instructive since proponents of Build-Operate-Transfer projects usually form joint ventures or consortiums. Under said IRR, “[A] joint venture/consortium proponent shall be evaluated based on the individual or collective experience of the member-firms of the joint venture/consortium and of the contractor(s) that it has engaged for the project.”[47]

On another point, the RFP provides that the documentary evidence of the bidder’s qualifications to perform the contract if its bid is accepted shall establish to the satisfaction of the BAC that in case a bidder offering to supply goods under the contract did not manufacture or otherwise produce the goods itself, the bidder must show that it is an established dealer of the goods for at least five (5) years and shall produce documentary evidence to show that he has been duly authorized by the goods’ manufacturer or producer to supply the goods to the Philippines. [48]

The RFP also requires that the documents submitted shall show that the bidders have the financial, technical and production capability necessary to perform the contract. For this purpose, the primary technology proponent, i.e., the manufacturer of the counting machine itself, and the creator of the consolidation software, should have a minimum of five (5) years corporate existence in good standing, whereas the members of the consortium providing ancillary services, i.e., project management and human resources training, should show documentary evidence that their services have been contracted for at least one (1) political exercise with at least 20,000,000 voters and their companies have been issued an ISO certification. Finally, the ACMs should have been used in at least one (1) political exercise with no less than 20,000,000 voters.[49]

The Comment[50] of the OSG and Memorandum[51] submitted by MPC detailed the qualifications and track record of the members of MPC, viz: SK C&C, the primary technology proponent and manufacturer of the ACMs, is a corporation in good standing in South Korea since 1991. The ACMs have been used in two (2) Korean national elections with more than 20,000,000 voters. Election.Com, which shall be responsible for system integration, is a corporation in good standing in Delaware, U.S.A. since 1991 and has experience with more than 400 elections in the U.S.A. and Europe. We Solv, which is responsible for the rollout, training and maintenance functions of MPC, is a Philippine corporation in good standing since 1994. Oracle, which shall provide complete information solutions, is a Philippine corporation in good standing since 1996. ePLDT, the provider of computer security and encryption, is a wholly-owned subsidiary of Philippine Long Distance Telephone Company. Finally, MPEI, which shall install and maintain the ACMs, provide system integration services and project leadership, is a Philippine corporation incorporated on February 27, 2003. Clearly, all these show that MPC has the financial, technical and production capability necessary to perform the Contract.

Noticeably, the petitioners failed to contest the qualifications of the members of the consortium in any of their pleadings. The Decision, uncharacteristically silent on this matter except for its general objection to the inability of MPEI to submit some of the financial documents required by the RFP, seemingly concedes that the members of the consortium are eligible and qualified to perform the Contract.

In my opinion, these paper requirements should yield to the reality that, collectively, the members of the consortium have furnished the COMELEC with sufficient information to enable it to judiciously gauge MPC’s eligibility and qualifications. The strict and inflexible adherence to the bidding requirements by each and every component of the consortium advanced by the petitioners would negate the salutary purpose of R.A. 8436 and frustrate the long-anticipated modernization of the electoral system.

Counting machines supplied

by MPC meet the features

prescribed by law

Unfortunately, the ponencia’s nitpicking did not stop there. It asserts that MPC failed the technical evaluation conducted by the DOST. Hence, the COMELEC should have disqualified MPC.

It should be recalled that the COMELEC required prospective suppliers/bidders to submit a certified accuracy rating for both the vote counting and consolidation system from the DOST for each model of counting machine and canvassing system that they intend to offer. The machine must be certified by the DOST that it will operate properly and accurately under various working conditions. For this purpose, the COMELEC identified key requirements for evaluation, namely: vote counting accuracy, consolidation/canvassing accuracy, ballot counting speed, security features for both the hardware and software, and system reliability.[52]

In its Report, the BAC noted the results of the evaluation conducted by its Technical Working Group (TWG) and by the DOST as follows:

“The BAC further noted that both Mega-Pacific and TIM obtained some ‘failed marks’ in the technical evaluation. In general, the ‘failed marks’ of Total Information Management as enumerated above affect the counting machine itself that are material in nature, constituting non-compliance to (sic) the RFP. On the other hand, the ‘failed marks’ of Mega-Pacific are mere formalities on certain documentary requirements, which the BAC may waive, as clearly indicated in the Invitation to Bid.

In the DOST test, TIM obtained 12 failed marks mostly attributed to the counting machine itself as stated earlier. These are requirements of the RFP and therefore the BAC cannot disregard the same.

Mega-Pacific in 8 items however these are mostly on the software, which can be corrected by reprogramming the software and therefore can be readily corrected.”[53] [Emphasis supplied]

Parenthetically, in his sponsorship remarks on R.A. No. 8436,[54] Rep. Abueg underscored the salient features which must be found in the AES. He said:

“a. The system shall utilize appropriate technology for voting and electronic devices for counting of votes and canvassing of results;

b. A stand-alone machine that is not hooked to any centralized computer or other device through which data may be manipulated. The machine will admit no data or input source other than from a valid, official ballot. This feature is different from the computer networking systems of banks, cellular phones, radios and from machines employing other voting systems where keyboards and other devices are used precisely to input data or modify that previously inputted;

c. Utilizes visible light technology that allows the scanner to read marks similar to the human eye;

d. Can read 150 ballots per minute and accepts only valid ballots;

e. Provides audit trail;

f. Entails minimal human intervention;

g. To get the result per precinct, the election officer presses one button on the keypad and the precinct report is instantly generated. Multiple copies of the results/report are also available;

h. Accumulation of totals in seconds—At the counting center, totals are read in seconds, providing precincts detail reports, cumulative reports, and the official canvass. Reports may be displayed in monitors or large screen TV for the media, candidates or general public.”[55]

Accordingly, R.A. 8436 categorized into mandatory and optional the features which the AES must contain, thus:

“Sec. 7. Features of the System.—The System shall utilize appropriate technology for voting, and electronic devices for counting of votes and canvassing of results. For this purpose, the Commission shall acquire automated counting machines, computer equipment, devices and materials and adopt new forms and printing materials. The System shall contain the following features: (a) use of appropriate ballots, (b) stand-alone machine which can count votes and an automated system which can consolidate the results immediately, (c) with provisions for audit trails, (d) minimum human intervention and (e) adequate safeguard/security measures. In addition, the System shall as far as practicable have the following features:

1. It must be user-friendly and need not require computer-literate operators;

2. The machine security must be built-in and multi-layer existent on hardware and software with minimum human intervention using latest technology like encrypted coding system;

3. The security key control must be embedded inside the machine sealed against human intervention;

4. The Optical Mark Reader (OMR) must have a built-in printer for numbering the counted ballots and also for printing the individual precinct number on the counted ballots;

5. The ballot paper for the OMR counting machine must be of the quality that passed the international standard like ISO-1831, JIS-X 9004 or its equivalent for optical character recognition;

6. The ballot feeder must be automatic;

7. The machine must be able to count from 100 to 150 ballots per minute;

8. The counting machine must be able to detect fake or counterfeit ballots and must have a fake ballot rejector;

9. The counting machine must be able to detect and reject previously counted ballots to prevent duplication;

10. The counting machine must have the capability to recognize the ballot’s individual precinct and city or municipality before counting or consolidating the votes;

11. The System must have a printer that has the capacity to print in one stroke or operation seven (7) copies (original plus six (6) copies) of the consolidated reports on carbonless paper;

12. The printer must have at least 128 kilobytes of Random Access Memory (RAM) to facilitate the expeditious processing of the printing of the consolidated reports;

13. The machine must have a built-in floppy disk drive in order to save the processed data on a diskette;

14. The machine must also have a built-in hard disk to store the counted and consolidated data for future printout and verification;

15. The machine must be temperature-resistant and rust-proof;

16. The optical lens of the OMR must have a self-cleaning device;

17. The machine must not be capable of being connected to external computer peripherals for the process of vote consolidation;

18. The machine must have an Uninterrupted Power Supply (UPS);

19. The machine must be accompanied with operating manuals that will guide the personnel of the Commission on the proper use and maintenance of the machine;

20. It must be so designed and built that add-ons may immediately be incorporated into the System at minimum expense;

21. It must provide the shortest time needed to complete the counting of votes and canvassing of the results of the election;

22. The machine must be able to generate consolidated reports like the election return, statement of votes and certificate of votes at different levels; and

23. The accuracy of the count must be guaranteed, the margin of error must be disclosed and backed by warranty under such terms and conditions as may be determined by the Commission. x x x” [Emphasis supplied]

It is well to note that all the 1,991 ACMs supplied by MPC under the Contract were found to have satisfied the mandatory requirements of the AES, to wit: (a) use of appropriate ballots, (b) stand-alone machine[56] which can count votes and an automated system which can consolidate the results immediately, (c) with provisions for audit trails, (d) minimum human intervention and (e) adequate safeguard/security measures. As stated in the BAC Report, the failed marks of MPC were mere formalities in certain documentary requirements. Further, these failed marks were attributable to the software which can be readily corrected by reprogramming. The failed marks, therefore, were not material in nature and were, at worst, mere optional features of the System.[57] The RFP clearly authorizes the BAC to waive any informality, non-conformity or irregularity in a bid which does not constitute a material deviation, provided that such waiver does not prejudice or affect the relative ranking of any bidder.[58]

As regards the issue relating to the accuracy rating of 99.9995% mandated for the counting machine by the RFP, right off I observe that the petitioners made pronounced changes in their position at every turn. In the Petition, they simply alleged that the COMELEC had erred when it “failed to declare a failed bidding and to conduct a re-bidding of the project despite the failure of the bidders to pass the technical tests,” including the test on the accuracy rating of the machine.[59] At the oral arguments, however, they claimed that the COMELEC had “waived the accuracy requirement.”[60] Finally, in their Memorandum they accused the poll body of having “changed the accuracy criteria from 99.9995 percent to only 99.995 percent.”[61]

However, there is no competent evidence on record that the COMELEC had waived or changed the prescribed accuracy rating. In fact, in the Contract between COMELEC and MPEI, the same accuracy rating of 99.9995 percent was required. Also in the letter dated October 24, 2003 of DOST, it clarified its Report[62] stating that upon further verification, it found that “except for 1 ACM (with an accuracy rating of 99.998%), all of the 456 machines (including the retested 9 units) that were tested by the DOST (as of October 20, 2003) have an accuracy rating of 100% provided that the ballots are shaded correctly and fed into the ACMs following the right orientation.”[63] Notably, the DOST Report itself states that the machines are 100% accurate.[64] This official evaluation has mooted the petitioners’ challenge and rendered the pursuit thereof an inconsequential exercise.

Harping on the requirement for audit trail, the ponencia proceeds to conclude that the ACMs are deficient because of their alleged inability to print the audit trail.

It should be emphasized that Table 6 of the DOST Report[65] shows that the tested ACM of MPC generates audit trails which reflect the exact date and time of the start and end of counting of ballots per precinct.[66] The ACM was also able to generate hard and soft copies of the audit trail of the counting machine, with hard copies generated regularly.[67] Moreover, R.A. 8436 itself merely requires that the AES shall have “provisions for audit trail,” which the ACM, as tested, has complied with.

Anent the inability of the machine to detect previously downloaded data and prevent these from being inputted again into the system, suffice it to state that this is neither a mandatory nor an optional feature of the AES under R.A. 8436. In any case, it is deemed satisfied with DOST’s final favorable evaluation.

In compliance with the Resolution dated December 9, 2003, the COMELEC filed its Partial Compliance and Manifestation dated December 24, 2003 informing the Court that 1,991 units of ACMs have already been delivered to the Commission. Of these, a total of P849,167,697.41, corresponding to 1,973 ACMs which have passed DOST testing, has been paid to MPC.

The misgivings regarding the alleged deficiencies in the software are largely explained by the Commission in their Partial Compliance and Manifestation. According to the Commission, the Project involved the development of three (3) types of software for use during the evaluation of technical bids, testing and acceptance procedures and on election day.

For purposes of the evaluation of technical bids, the bidders were asked to develop a “base” software program that will enable the ACMs to function properly. The base software is not the actual software to be used on election day. Hence, the software defects were considered minor in nature, and accordingly, waived.

On the other hand, for purposes of the technical and acceptance procedures, a Testing and Acceptance Manual (Manual) was prepared by the Ad Hoc Technical Evaluation Committee, which ensured compliance of the Manual with the Terms of Reference approved by the COMELEC and the provisions of R.A. 8436. The software used for the ACMs was reprogrammed to comply with the Manual. Upon testing, the DOST certified that 1,973 units passed the technical and acceptance procedures.[68]

Anent the software to be used on election day, additional elements such as the final certified list of candidates, project of precincts, official ballot design and security features, and encryption, digital certificates and digital signatures have to be integrated into the software. Understandably, because of the timeline followed with regard to these additional elements, the software has not yet been finalized. The ponencia, however, chooses to view these circumstances with insularity. It even holds suspect the certifications issued by the DOST declaring that the ACMs had passed the acceptance tests conducted by the Department.

It is not amiss to state at this juncture that these declarations should be accorded full faith and credit there being no justification for a contrary stance. Reckoned from the standpoint of the established legal presumptions of validity of official acts and regularity in the performance of official duty, I find it unjustified to speculate, as the ponencia does, on the good or bad motives that impelled the COMELEC to award the Contract to MPC.

Epilogue

In view of the foregoing, the majority’s position that the COMELEC should have conducted a re-bidding of the Project is plainly injudicious. The procedure is warranted only if no bid is received or qualified as the lowest calculated and responsive bid. It is not amiss to mention again that there were more than 50 bidders[69] for the Project, out of which MPC was qualified as the lowest calculated and responsive bid. A re-bidding of the Project would not serve any further purpose because the bidding had actually drawn the participation of as many bidders as realistically possible and that considering the enormity of the Project, a new bidding would not reasonably attract new bidders. There is therefore no basis to conclude that there was a failure of bidding, and the contract should be re-advertised and re-bid.[70] Remarkably besides, none of the losing bidders questioned the process undertaken by the BAC. The logical conclusion is that the losing bidders have conceded MPC’s eligibility and qualifications and deferred to the decision of the COMELEC to award the Contract to MPC.

It is also to the COMELEC’s credit that its award of the Contract to MPC has resulted in substantial savings for the government. The paramount objective of public bidding is to ensure that the government obtains the lowest and best price in the market.[71] This objective was undoubtedly attained by the award of the Contract to MPC. As emphasized in the respondents’ pleadings and in newspaper advertisements,[72] MPC’s bid covering nationwide automation was P49,000,000.00 lower than that submitted by TIMC, with its coverage restricted to Mindanao and the National Capital Region.[73]

As stated at the outset, the Court has unfailingly stressed the importance of giving the COMELEC considerable latitude in adopting means and methods that will insure the accomplishment of the objective for which it was created—to promote free, orderly, honest, peaceful and credible elections — and perforce prudently declined to interfere with COMELEC’s exercise of its administrative functions absent any showing of grave abuse of discretion. I see no justification for the departure from this principle in the instant case.

Let it be noted that R.A. No. 8436 was precisely intended as an initial step towards the modernization of the Philippine electoral system which seeks to ensure free, orderly, honest, peaceful and credible elections. The COMELEC must be given enough latitude to bring into fruition this laudable purpose.

All the challenges, whether factual or legal, to the acts of COMELEC, to my mind, have been adequately explained and clarified.

The most crucial point raised against the respondents is the alleged non-submission of the consortium agreements before the bidding deadline. The ponencia adverted to it no les than five times. But the assertion which is one of fact is debunked by the consortium agreements themselves which were notarized not later than March 9, 2003, or before the bidding deadline. To ignore the public character of the documents is to unfairly ascribe bad faith to COMELEC.

As for the fact that MPEI was made the party to the Contract with COMELEC, this was so simply because MPEI was authorized to sign in behalf of the other consortium members.

Seemingly, the ultimate resolution of this case has narrowed down to the question of which prognostication of the technical performance of the counting machines on election day is accurate: That of the COMELEC’s or this Court’s? But that would lead the Court to tread on unfamiliar waters. More fundamentally, the question was not raised in the Petition.

In closing, I refer to the definition of “grave abuse of discretion” which the Court made in Tañada v. Angara,[74] cited at the opening of the Decision:[75]

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Failure on the part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition.

In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a constitutional body independent and coordinate, and thus its actions are presumed regular and done in good faith. Unless convincing proof and persuasive arguments are presented to overthrow such presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted definition of grave abuse of discretion and the presumption of regularity in the Senate’s processes, this Court cannot find any cogent reason to impute grave abuse of discretion to the Senate’s exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution.[76]

Like the Senate to which the Court graciously deferred in the cited ruling, I respectfully submit, the COMELEC deserves the same degree of deferential treatment given its status as a constitutional body. But quite lamentably, the Decision would bring disrepute to and even cause havoc on the COMELEC as an institution. It will never be the same.

I therefore vote to dismiss the instant Petition.

[5] BOT Law and its Implementing Rules and Regulations.

[8] For instance, issues covering Phase I (Voters’ Registration and Validation System) and Phase III (Electronic Transmission) which were raised in the media are not before the Court.

[9] Dissenting opinion of Mr. Justice Felix Frankfurter, Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437.

[10] Frankfurter, Felix Frankfurter on the Supreme Court Extra Judicial Essays on the Court and the Constitution, 1970, p. 339, citing United States v. Ferreira, 1 How. 40 (1851).

[11] E.g., the COMELEC has to promulgate new rules on casting of votes, appreciation, counting and canvassing of ballots, conduct a voters’ education program on the automated system and train personnel who will operate the ACMs.

[12] Cauton v. COMELEC, G.R. No. L-25467, April 27, 1967, 19 SCRA 911.

[15] Gonzales, Administrative Law—A text, 1979, p. 137.

[18] Sec. 1, Rule 65, 1997 Rules of Civil Procedure.

[22] Pars. (a) & (d) Sec. 5, Code of Conduct and Ethical Standards for Public Officials and Employees.

[29] Id. at 2348-2351 and 2352-2354, respectively.

[30] Id. at 2355-2363 and 2364-2373, respectively.

[43] G.R. No. 113375, May 5, 1994, 232 SCRA 110.

[45] “An Act Authorizing The Financing, Construction, Operation And Maintenance Of Infrastructure Projects By The Private Sector And For Other Purposes.” It is otherwise known as the BOT Law.

[46] “An Act Amending Certain Sections Of Republic Act No. 6957, Entitled "An Act Authorizing The Financing, Construction, Operation And Maintenance Of Infrastructure Projects By The Private Sector, And For Other Purposes."

[52] Report on the Testing and Technical Evaluation of Automated Counting Machines by the DOST, April 1-3, 2003, p. 1.

[54] Sponsorship Remarks of Rep. Abueg at the House of Representatives, May 20, 1997; TSN, pp. 7-8.

[56] During the oral arguments, Com. Borra asserted that the ACMs are stand alone machines in that they do not have inputs or outputs that enable them to be networked. TSN, October 7, 2003, pp. 176-179.

[63] Supra, note 28 at 2541-2542, letter from the Executive Director cum Chairman of the DOST Technical Evaluation Committee, Mr. Rolando Viloria, addressed to Com. Borra.

[68] The letter dated December 15, 2003 addressed to Com. Borra from Rolando T. Viloria, Executive Director and Chairman of the DOST-Technical Evaluation Committee states that the DOST tested a total of 1,991 ACMs. Of these, 18 units failed the test. Out of the 18 units, only one (1) unit failed the retest.

[69] The Memorandum of the OSG (Rollo, p. 2428) states that there were more than 50 prospective bidders for the Project.

[71] Cobacha and Lucenario, Law on Public Bidding and Government Contracts, 1960, p. 7.

[72] Philippine Daily Inquirer, November 20, 2003.